Category: Chapter 9 – Dispute resolution (TAA)

Section 118 (TAA) – Constitution of tax court

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118.    Constitution of tax court

(1)     A tax court established under this Act consists of-

(a)     a judge or an acting judge of the High Court, who is the president of the tax court;

(b)     an accountant selected from the panel of members appointed in terms of section 120; and

(c)     a representative of the commercial community selected from the panel of members appointed in terms of section 120.

(2)     If the appeal involves-

(a)     a complex matter that requires specific expertise and the president of the tax court so directs after considering any representations by a senior SARS official or the ‘appellant’, the representative of the commercial community referred to in subsection (1)(c) may be a person with the necessary experience in that field of expertise;

(b)     the valuation of assets and the president of the tax court, a senior SARS official or the ‘appellant’ so requests, the representative of the commercial community referred to in subsection (1)(c) must be a sworn appraiser.

[Subsection (2) amended by section 51 of Act 39 of 2013, substituted by section 58 of Act 16 of 2016 effective on 19 January 2017]

(3)     If an appeal to the tax court involves a matter of law only or is an interlocutory application or application in a procedural matter under the ‘rules’, the president of the court sitting alone must decide the appeal.

(4)     The president of the court alone decides whether a matter for decision involves a matter of fact or a matter of law.

(5)     The Judge-President of the Division of the High Court with jurisdiction in the area where the relevant tax court is situated, may direct that the tax court consist of three judges or acting judges of the High Court (one of whom is the president of the tax court) and the members of the court referred to in subsections (1)(b) and (c) and (2), where necessary, if-

(a)     the amount in dispute exceeds R50 million; or

(b)     SARS and the ‘appellant’ jointly apply to the Judge-President.

Section 119 (TAA) – Nomination of president of tax court

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119.    Nomination of president of tax court

 

(1)     The Judge-President of the Division of the High Court with jurisdiction in the area for which a tax court has been constituted must nominate and second a judge or an acting judge of the division to be the president of that tax court.

 

(2)     The Judge-President must determine whether the secondment referred to in subsection (1) applies for a period, or for the hearing of a particular case.

 

(3)     A judge will not solely on account of his or her liability to tax be regarded as having a personal interest or a conflict of interest in any matter upon which he or she may be called upon to adjudicate.

Section 120 (TAA) – Appointment of panel of tax court members

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120.    Appointment of panel of tax court members

 

(1)     The President of the Republic by proclamation in the Gazette must appoint the panel of members of a tax court for purposes of section 118(1)(b) and (c) for a term of office of five years from the date of the relevant proclamation.

 

(2)     A person appointed in terms of subsection (1) must be a person of good standing who has appropriate experience.

 

(3)     A person appointed in terms of subsection (1) is eligible for reappointment for a further period or periods as the President of the Republic may think fit.

 

(4)     The President of the Republic may terminate the appointment of a member under this section at any time for misconduct, incapacity or incompetence.

 

(5)     A member’s appointment lapses in the event that the tax court is abolished under section 116(1).

 

(6)     A member of the tax court must perform the member’s functions independently, impartially and without fear, favour or prejudice.

Section 121 (TAA) – Appointment of registrar of tax court

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121.    Appointment of registrar of tax court

 

(1)     The Commissioner appoints the ‘registrar’ of the tax court.

 

(2)     A person appointed as ‘registrar’ and persons appointed in the ‘registrar’s’ office are SARS employees.

 

(3)     The ‘registrar’ and other persons referred to in subsection (2) must perform their functions under this Act and the ‘rules’ independently, impartially and without fear, favour or prejudice.

Section 122 (TAA) – Conflict of interest of tax court members

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122.    Conflict of interest of tax court members

 

(1)     A member of the court must withdraw from the proceedings as soon as the member becomes aware of a conflict of interest which may give rise to bias which the member may experience with the case concerned or other circumstances that may affect the member’s ability to remain objective for the duration of the case.

 

(2)     Either party may ask for withdrawal of a member on the basis of conflict of interest or other indications of bias, under procedures provided in the ‘rules’.

 

(3)     A member of the court will not solely on account of his or her liability to tax be regarded as having a personal interest or a conflict of interest in the case.

Section 138 (TAA) – Notice of appeal to Supreme Court of Appeal against tax court decision

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138.    Notice of appeal to Supreme Court of Appeal against tax court decision

 

(1)     If a person has-

 

(a)     appealed to the Supreme Court of Appeal from a court established under section 118(5);

 

(b)     been granted leave to appeal to the Supreme Court of Appeal under section 135; or

 

(c)     successfully petitioned to the Supreme Court of Appeal for leave to appeal,

 

the appeal which a party must note against a decision given in the relevant case must be noted to that Court.

 

(2)     If the notice of intention to appeal was noted to the High Court or leave to appeal to the Supreme Court of Appeal has been refused under section 135, the party who lodged the notice of intention to appeal must note an appeal to the appropriate Provincial Division of the High Court.

 

(3)     The notice of appeal must be lodged within the period referred to in section 137(1)(a) or within a longer period as may be allowed under the rules of the court to which the appeal is noted.

 

(4)     A notice of appeal must be in accordance with the requirements in the rules of the relevant higher court.

Section 139 (TAA) – Notice of cross-appeal of tax court decision

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139.    Notice of cross-appeal of tax court decision

(1)     A cross­appeal against a decision of the tax court in a case in which an appeal has been lodged under section 138, must be noted by lodging a written notice of cross­ appeal with the ‘registrar’, serving it upon the opposite party or the opposite party’s legal practitioner and lodging it with the registrar of the court to which the cross­appeal is noted.

[Subsection (1) substituted by section 37 of Act 33 of 2019]

(2)     The notice of cross-appeal must be lodged within 21 business days after the date the appeal is noted under section 138 or within a longer period as may be allowed under the rules of the court to which the cross-appeal is noted.

(3)     A notice of cross-appeal must state-

(a)     whether the whole or only part of the judgment is appealed against, and if a part, which part;

(b)     the grounds of cross-appeal specifying the findings of fact or rulings of law appealed against; and

(c)     any further particulars that may be required under the rules of the court to which the cross-appeal is noted.

Section 140 (TAA) – Record of appeal of tax court decision

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140.    Record of appeal of tax court decision

 

(1)     The record lodged with a court to which an appeal against a decision of a tax court is noted, includes all documents placed before the tax court under the ‘rules’.

 

(2)     Documents submitted in the tax court which do not relate to the matters in dispute in the appeal may be excluded from the record with the consent of the parties.

Section 141 (TAA) – Abandonment of judgment

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141.    Abandonment of judgment

(1)     A party may, by notice in writing, lodged with the ‘registrar’ and the opposite party or the opposite party’s legal practitioner or agent, abandon the whole or a part of a judgment in the party’s favour.

[Subsection (1) substituted by section 38 of Act 33 of 2019]

(2)     A notice of abandonment becomes part of the record.